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Anne Trebilcock

This comprehensive research review discusses an array of distinguished papers from within the sphere of comparative labour law, covering the subject’s most compelling and thought-provoking questions. Topics include the uses and limits of comparative labour law, the enforcement of labour rights and the methods of comparative labour. This review promises to be a useful research tool for scholars and practitioners, as well as a fascinating read for those interested in the field.
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Anne Trebilcock

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Anne Trebilcock

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Virgílio Afonso da Silva

This chapter calls for the abandonment of the simplistic dichotomy currently used to describe any system of judicial review—the “United States” or “European” models of judicial review. Drawing on extended examples from France, Brazil, Portugal, and the United States, as well as a survey of many other countries, the author argues that countries can be classified deceptively under the current schema. And, even when systems are categorized correctly, such a dualistic perspective ignores other, potentially more important, differences between systems such as differences in timing, appointment of judges, composition of the bench, term, access to the court, deliberation and decision-making processes, and effects of the court’s decisions. The chapter concludes by calling for an exploration of typologies which can move from the current dualism to a more expansive classificatory vocabulary in order to foster richness of discussion and research.

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Jamal Greene and Yvonne Tew

This chapter develops a basic taxonomy of approaches to constitutional history based on types of history, patterns of use, and type of provision. Within these categories, the variations in the use of constitutional history include purposes/expectations, intention/meaning, texts/backdrops, pluralist/dispositive, and interpretation/rhetoric. The authors then apply this taxonomy to the practices of constitutional courts in the United States, Canada, Germany, Australia, India, Hong Kong, Malaysia, and Singapore. From this survey, the chapter concludes that history plays a variable role across constitutional systems, depending on the country’s unique historical, cultural, and political traditions.

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Samuel Issacharoff

This chapter approaches comparative constitutional law from a court-centered perspective rather than a rights-oriented perspective. The author discusses the role of new constitutional courts in forestalling a return to an autocratic past and in acting as the handmaidens of a new democratic order, by considering court creation in a broad swath of European countries and South Africa. The chapter pays particular attention to the specific role that the Constitutional Court in South Africa played in moving the country from a provisional to a final constitution. Next, the author reviews the role of constitutional courts in new democracies in aiding quick transitions to basic democratic governance before constitutional drafters are able to reach full agreement on and flesh out the specifics of constitutional compromise. Finally, the chapter assesses how courts in Argentina, Columbia, South Africa, Germany, India, and Israel have survived confrontations with political power with varying success.

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Edited by Erin F. Delaney and Rosalind Dixon

Constitutional courts around the world play an increasingly central role in day-to-day democratic governance. Yet scholars have only recently begun to develop the interdisciplinary analysis needed to understand this shift in the relationship of constitutional law to politics. This edited volume brings together the leading scholars of constitutional law and politics to provide a comprehensive overview of judicial review, covering theories of its creation, mechanisms of its constraint, and its comparative applications, including theories of interpretation and doctrinal developments. This book serves as a single point of entry for legal scholars and practitioners interested in understanding the field of comparative judicial review in its broader political and social context.
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Wen-Chen Chang and Yi-Li Lee

This chapter examines the dynamics of having a constitutional court separate from the ordinary appellate structure of a court system, using South Korea and Taiwan as comparative case studies. The authors open by examining the differences that choices of institutional design, appointment mechanisms, and contextual dynamics make in the development of systems of constitutional review. They find that notwithstanding a clear jurisdictional distinction, tension nevertheless emerges between the Constitutional Court and the Supreme Court in South Korea, whereas in Taiwan, where there is not a clear division of jurisdiction, the Constitutional Court, Supreme Court, and Supreme Administrative Court have collaborated. This chapter concludes by suggesting that institutional design, appointment mechanisms and contextual dynamics are the key to explaining the competitive or collaborative power configurations among multiple top courts.

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Constitutional Law and Regionalism

A Comparative Analysis of Regionalist Negotiations

Vito Breda

This topical book analyses the practice of negotiating constitutional demands by regional and dispersed national minorities in eight multinational systems. It considers the practices of cooperation and litigation between minority groups and central institutions in Australia, Britain, Canada, New Zealand, Italy, Spain, and the U.S. and includes an evaluation of the implications of the recent Catalan, Puerto Rican and Scottish referenda. Ultimately, the author shows that a flexible constitution combined with a versatile constitutional jurisprudence tends to foster institutional cooperation and the recognition of the pluralistic nature of modern states
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Rosalind Dixon and Tom Ginsburg

This chapter explores the strategic foundations of judicial review, by developing the idea of judicial review as a form of political “insurance”. Building on prior work on the insurance function of constitutions and courts, it develops a three-part typology of constitutions as a form of political insurance: first, the idea of constitutions as a form of power-based insurance; second, as a form of personal insurance for political leaders; and third, a form of policy-based insurance for elites facing a loss of internal or external political influence. Each type of insurance, the chapter suggests, implies somewhat different choices at the level of constitutional design—that is, in the design of constitutional language, amendment rules, constitutional courts, and procedural rules of access to judicial review. Each also raises distinct risks of “nullification” or “cancellation”. The chapter explores these risks, and offers new insights about how and when they are most likely to arise: Constitutional insurance, it ultimately suggests, is most likely to be effective where it is multi-sided in nature, offering some potential pay-off to all major political players. The chapter illustrates these arguments with examples from South Africa, Mexico, Italy, Japan, Taiwan and Romania, among other countries.